Criminal Antitrust Enforcement: Recent Highlights, Policy Initiatives, and What's to Come

• Jurisdiction: United States,Federal
• Citation: Vol. 30 No. 1
• Publication year: 2020
• Author: By Richard A. Powers
• topic: Antitrust and Competition,Business of Law,Criminal Law

CRIMINAL ANTITRUST ENFORCEMENT: RECENT HIGHLIGHTS, POLICY INITIATIVES, AND WHAT'S TO COME

By Richard A. Powers¹

Good afternoon. Thank you, Peter, for the kind introduction. It's great to be back in San Francisco, and I appreciate the invitation to speak at the 29th Annual Golden State Institute. The timing of your event allows me to reflect on the many accomplishments of our outstanding prosecutors and to detail the Antitrust Division's criminal enforcement priorities going forward.

My remarks today will focus on three topics: first, a recap of recent case-related developments; second, two significant policy announcements and their implications; and third, I will close with a few thoughts on our goals and plans for the future.

Before I get into those topics, however, I want to spend a few minutes talking about the state of our program. As many of you know, we've been navigating a period of change and transition at the Division. Over the last few years, we've had a number of significant, highly successful investigations wind down. As that has happened, we have shifted our limited resources to new investigations and new initiatives.

We've also introduced and implemented a number of policy and practice changes. Some of the changes attracted headlines—such as last summer's compliance announcement and the recent launch of the Procurement Collusion Strike Force. Other changes were behind the scenes and involved the details of our day-to-day practice. Additionally, we've promoted talented and experienced prosecutors to key leadership roles at the Division.

We aren't just seeing changes with our leadership; we are growing our trial attorney ranks. We've hired twelve new trial attorneys across three offices in the last few months and are wrapping up a round of lateral hiring in our San Francisco Office. We've also brought in two experienced litigators from other components of the Department of Justice.

For the first time, we've added a Senior Litigation Counsel, Carol Sipperly, who is one of the Department's most seasoned litigators, with experience prosecuting everything from corporate crime to mafia bosses.

William Sloan also joined the Division as counsel to the Assistant Attorney General. Billy exceled as an Assistant United States Attorney in two different districts and brings significant trial experience to our ranks. As I will discuss later, he has also spearheaded the launch of the Procurement Collusion Strike Force and will serve as its first director.

With new leadership and new trial attorneys in place, we've taken the time to look at our program and our mission, which is to promote economic competition by deterring, detecting, and prosecuting criminal violations of the antitrust laws. In fulfilling that mission, we are grounded first and foremost by our commitment to professionalism and the high ethical standards expected of federal prosecutors. I often emphasize that we are process driven. We will do things the right way, for the right reasons: we will run efficient, organized investigations, and make sound prosecutorial decisions based upon the Principles of Federal Prosecution.

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As many of you know, our investigations are lengthy, wide-ranging, and complex. Greed can infect any market, and our duty to deter, detect, and prosecute those who cheat consumers and corrupt the competitive free market spans the U.S. economy.

We investigate and prosecute antitrust crimes knowing that our work will be dissected and challenged at every point. Sometimes, in these high-stakes cases, the defense opts to challenge the integrity of our investigation as a negotiation or litigation tactic, rather than contest the facts or the law. But our job as prosecutors is to put professionalism, ethics, and mission first, and I couldn't be prouder of how our prosecutors handle themselves each day to embody what the late-Attorney General and Justice Robert H. Jackson called the "spirit of fair play and decency that should animate the federal prosecutor."

In addition to questions that go toward fair play and decency, some have questioned our zeal, particularly when it comes to labor market investigations. In October 2016, the Division reminded the business community that naked agreements among employers to limit competition for employees are per se violations of the Sherman Act that can be prosecuted criminally.

The Division has a number of active criminal investigations into naked no-poach and wage-fixing agreements that began or continued after October 2016. The investigation and prosecution of employers who collude with other employers to cheat their employees and distort the labor markets remains one of the Division's highest priorities and an area to which we are devoting substantial resources.

That said, the time and effort required to investigate and build criminal cases is substantial. We will follow the evidence wherever it leads us, including to the C-suite of major corporations, but...